Aрpellants Ebenezer Aluko and Henry Olawale Balogun pled guilty to conspiracy, mail fraud, and insurance fraud in violation of 18 U.S.C. §§ 371, 1341-42 (1984) and 42 U.S.C. § 408(a)(7)(B) (1991). Specifically, appellants procured insurance coverаge on vehicles registered under fictitious names. The conspiracy entailed one hundred and twenty-four fraudulent claims amounting to $620,000. 1 Balogun and another co-defendant initiated the scheme on April 1, 1989; Aluko jоined the conspiracy on or about October 6, 1990.
The district court sentenced Aluko to twenty-four months in prison 2 and Balo-gun to thirty-three months. 3 Appellants appeal their sentences.
“We review a trial court’s determinations under the [United States] Sentencing Guidelines only for clear еrror.”
United States v. Panet-Collazo,
We address the appeals in turn.
Appellant Aluko
At his sentencing hearing, Aluko contested his presеntence report’s calculation of offense level under the United States Sentencing Guidelines (“U.S.S.G.”). 4 In calculating the total offense level in the presen-tence report, the probation offiсer based his calculation on all one hundred and twenty-four fraudulent claims filed as part of the conspiracy. As these claims amounted to $620,000, he enhanced Aluko’s *22 base offense level by ten levels pursuant to U.S.S.G. § 2Fl.l(b)(l)(K) (Nov.1991) (ten level offense increase required for losses between $500,000 and $800,000). In addition, the probation officer concluded that Aluko’s participation in the scheme involved more than minimal planning. Thus, he further enhanced Aluko’s offense level by two levels pursuant to U.S.S.G. § 2Fl.l(b)(2) (Nov.1991). 5 Finally, the probation officer also subtracted two levels for acceptance of responsibility. The district court adoрted the presentence report calculation.
At sentencing, Aluko challenged the presentence report on two grounds, both of which he revives in this appeal. First, Alu-ko contends that the govеrnment established his involvement in only ten of the one hundred and twenty-four fraudulent claims, and that he can only be held responsible for those ten claims. He asserts that the rest of the claims were actions of сo-conspirators which were not reasonably foreseeable to him. See U.S.S.G. § lB1.3(a)(l), Application Note 1 (Nov. 1991) (for sentencing purposes, defendant is accountable for “conduct of others in furtherаnce of the execution of jointly-undertaken criminal activity that was reasonably foreseeable by the defendant”) (emphasis added).
In its sentencing ruling, the district court never discussed whether Aluko’s co-conspirators’ additional one hundred and fourteen fraudulent claims were reasonably foreseeable to Aluko. The court simply concluded that Aluko
was a conspirator with two other people. He was an important part of the conspiracy regardless of the numerical figures involved in claims filed, or in amount of money that he received. And so, he’s responsible for the whole conspiracy. It’s seldom that we find co-conspirators who know all facets of the oрeration. They know they’re involved in a conspira-ey and they’re involved at one tier level or another and, therefore, are integral parts and necessary parts of the success of the whole conspiracy.
(sentencing hearing transcript at 14).
This language suggests that once a defendant plays an integral role in a conspiracy, he is liable for co-conspirator acts in furtherance of the conspiracy, rеgardless of their foreseeability. While this language correctly describes the proper standard for a defendant’s
criminal conviction
for co-conspirator acts,
United States v. Fusaro,
We might in some circumstances treat a finding of foreseeability as inherent in the nature of the conspiracy. In this case, however, it appears that the judge thought foreseeability inherent in all conspiracies. This is not the law.
In addition, some оf the co-conspirator acts presumably occurred before Aluko joined the conspiracy as he joined one year after it began. By definition, acts that occurred before a defеndant enters a conspiracy cannot be foreseeable.
O’Campo,
Accordingly, we vacate Aluko’s sentence and remand for a determination of which, if any, of co-defendants’ actions were reasonably foreseeable to Aluko, 6 and for re-sentencing in accordance with that determination.
Second, Aluko argues that he played a minimal or minor role in the conspiracy, and thus deserved a downward adjustment to his total offense level pursuant to U.S.S.G. § 3B1.2(a) and (b) (Nov. 1991).
7
We first note that defendants are
*23
not automatically entitled to a downward adjustment, whatever their role in the crime.
United States v. Valencia-Lucena,
*22 If the offense involved ... more than minimal planning ... increase by 2 levels.
*23 Appellant Balogun
Before Balogun’s sentencing, the government objected to his presentenee report, claiming that his total offense level should have been increased two points pursuant to U.S.S.G. §• 3Bl.l(c) (Nov.1991). 8 Specifically, the government argued that Balogun was an “organizer, leader, or supervisor” of the conspiracy for the purposes of that section. The sentencing judge accepted the government’s representations and increased the total offense level from sixteen to eighteen.
Balogun offers two principal argumеnts against the judge’s calculation of his sentence. First, he argues that the district court impermissibly relied on the prosecutor’s statements in reaching its conclusion. Balogun does not challenge the facts аt issue; however, he challenges the application of § 3Bl.l(c) to these facts.
Application Note 3 of U.S.S.G. § 3B1.1 counsels that in determining whether a defendant is an organizer, leader, or supervisor pursuant to § 3Bl.l(c), the court should consider factors including: (1) decision making authority; (2) participation in the offense; (3) recruitment of accomplices; (4) claimed right to a larger share of the fruits of the crime; (5) dеgree of planning or organizing; (6) nature of illegal activity; and (7) degree of control over others.
The undisputed facts in the present ease show that Balogun initiated the conspiracy with another co-conspirator; he received significantly more money from the conspiracy than Aluko; he used cars fraudulently registered to Aluko to stage accidents; and he paid Aluko for his cooperatiоn in the scheme. We find no clear error in the district court’s conclusion that Balogun fit the role of an organizer, leader, or supervisor.
Second, Balogun argues that the sentence adjustment resulted in impermissible double counting because in addition to the increase for being an organizer, supervisor, or leader, the district court also accepted the presentence report’s enhancement of Balogun’s sentence for more than minimal planning pursuant to U.S.S.G. § 2F1.1(b)(2).
In
United States v. Fuller,
Balogun argues that the sentencing judge considered the elaborate nature of the schemе in applying the increase for an organizer, leader, or supervisor even though that complexity was already accounted for in the more than minimal planning enhancement. In support of this contention, Balogun notes the following statements by the sentencing judge.
... I’m satisfied that Mr. Balogun and Mr. [Oyelele] were the organizers of this scheme. They were the people who thought this matter up, maybe with help of оthers unknown, and Aluko was just one of the people who was initiated into the scheme, to be part of some facets of *24 it. So I’m satisfied that Balogun and [Oyelele] were organizers and leaders and supervisors of this matter....
This was a fairly elaborate scheme, one that required a lot of planning and a lot of organization, and a lot of fraudulent documents. And, therefore, I think, under the circumstances, the total offensе level should be 20....
(sentencing transcript at 9) (emphasis added).
As we see it, this language shows that the court based his § 3Bl.l(c) enhancement decision on Balogun’s initiation of the scheme and recruitment of Aluko, not on the complexity of the scheme. The judge’s allusion to the scheme’s elaborate nature simply provided further superfluous justification for the' resulting total offense level. We therefore find no impermissible double counting. 9
We affirm Balogun’s sentence in its entirety.
Affirmed in part; reversed and remanded in part.
Notes
. Although the claims amounted to $620,000, appellants’ arrest prevented the collection of $403,000.
. The judge also imposed a three-year term of supervised release, restitution of $16,750, and a $50 special assessment.
. The judge also imрosed a three-year supervised release term, restitution of $100,000 if the defendant was not deported, and a $200 special assessment.
. Both parties agree that the 1991 sentencing guidelines apply to this сase.
. Section 2F1.1(b)(2) provides:
. We note that this determination should also address the issue of which co-conspirator conduct, if any, took place before Aluko joined the conspiracy.
.Section 3B 1.2(a) provides:
If the defendant was a minimal рarticipant in any criminal activity, decrease by 4 levels.
*23 Section 3B 1.2(b) provides:
If the defendant was a minor participant in any criminal activity, decrease by 2 levels.
. Section 3Bl.l(c) provides:
If the defendant was an organizer, leader, manager, оr supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
. As an alternative ground, we note that as Balogun did not clearly raise this issue in the district court, he is precluded from raising it on appeal.
United States v. Ortiz,